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presented.

WISCONSIN
SUPREME COURT

WEDNESDAY,
MARCH 13, 2013

9:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed a Winnebago County Circuit Court
decision, Judge Barbara H. Key, presiding.

This case involves a lawsuit over
water damage that occurred to a privately owned building during a road construction
project in Oshkosh in the summer of 2008. The Supreme Court examines whether a private governmental contractor is entitled
to sovereign immunity under Estate of Lyons v. CNA Insurance Company,
207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996) for its efforts
to maintain water drainage on the construction site so as to protect
the adjacent private property from water damage.

Some background: The state hired
Musson Brothers to reconstruct about a one-mile stretch of State Highway 44
(Ohio Street) in Oshkosh.The
construction work was being done pursuant to an agreement between the city and
the state Department of Transportation (DOT).

The agreement called for, among
other things, the replacement of the sanitary and sewer mains in an area that
included Mark W. Showers’ business, Showers Appraisals, at the corner of 6th
Street and Highway 144. The contract included DOT’s Standard Specifications for
Highway and Structure Construction, which stated, in part, that Musson was
“solely responsible for the means, methods, techniques, sequences, and
procedures of construction.”

During the project, Musson
removed most of the storm sewer system serving the worksite. The city contends
this was contrary to a verbal agreement that Musson would remove the storm sewer
piecemeal, block-by-block, so that the bulk of the storm sewer system would
remain operational during the course of the construction work.

The area received historically
heavy rains June 8 through June 12, 2008, including 4.36 inches of rain on June
12. The worksite flooded, and water eventually channeled its way under Showers’
basement floor, which ruptured from the hydrostatic pressure. More than seven
feet of water filled Shower’s basement, resulting in approximately $140,000 in
uninsured damages.

Showers sued Musson and the city,
alleging that his property was damaged as a result of negligence. The city and
Musson each filed cross-claims for indemnification, and they each filed motions
for summary judgment against all of Showers’ claims.The trial court granted summary judgment,
reasoning that governmental immunity applied to both the City and Musson.

Showers claimed on appeal that
Musson was not entitled to governmental immunity as an agent under Lyons
because the contract did not contain “reasonably precise specifications.”Showers claimed that Musson had too much
discretion as to how to go about its work.Therefore, Showers claimed that Musson fell outside the Lyons
criteria because it was too independent from the state to be classified as an
“agent.”

However, the Court of Appeals
held that DOT’s standard specifications, combined with DOT’s regular oversight
of Musson’s work, curtailed Musson’s discretion in such a way that Musson was
subject to “reasonably precise specifications,” as Lyons requires.The Court of Appeals found that Musson had
immunity under Lyons.

A decision by the Supreme Court
could clarify the limits of governmental immunity under the circumstances
presented here.

WISCONSIN
SUPREME COURT

WEDNESDAY,
MARCH 13, 2013

10:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed a Waukesha County Circuit Court
decision, Judge Mark D. Gundrum, presiding.

This case examines whether a
municipal court or a circuit court has competence to extend the deadline for
requesting a refusal hearing under Wis. Stat. § 343.305 if the defendant does
not meet the pre-condition of requesting a hearing within 10 days.

Some background: Richard K.
Brefka’s vehicle was stopped by Village of Elm Grove police on Dec. 12,
2010.During the traffic stop Brefka
apparently refused the police officer’s request that he undergo a chemical
blood alcohol test.Following Brefka’s
refusal, the police officer gave Brefka a “Notice of Intent to Revoke Operating
Privilege” pursuant to Wis. Stat. § 343.305(9)(a).The notice was dated Dec. 12, 2010.Consistent with the statute, the notice
advised Brefka that he had 10 days to request a refusal hearing and that his
failure to request a refusal hearing would lead to the court revoking his
operating privileges 30 days after the date of the notice.

Brefka’s attorney requested a
refusal hearing, but did not do so until Dec. 28, 2010, which was more than 10
days after the date on which Brefka received the notice.Brefka retained new counsel, who filed a
motion with the municipal court on July 14, 2011 to extend the time limit for
requesting a refusal hearing.The motion
requested that the deadline for requesting a refusal hearing be extended due to
the excusable neglect of both Brefka and his original attorney.The village of Elm Grove opposed Brefka’s motion
and moved to strike his untimely request for a refusal hearing.

After holding a hearing on the
issue, the municipal court denied Brefka’s motion and dismissed his request for
a refusal hearing.It concluded that
Brefka’s failure to request the refusal hearing within the 10-day period
deprived it of competence to proceed with Brefka’s request.The circuit court agreed with the municipal
court’s decision and remanded the matter to the municipal court, presumably to
proceed with the revocation of Brefka’s driving privileges.

Brefka argued on appeal that the
municipal court and the circuit court had competence to extend the deadline for
requesting a refusal hearing under Wis. Stat. §§ 800.115(1) and 806.07. Section
800.115(1) allows a defendant in a municipal court case to move for relief from
a judgment or order on the grounds of excusable neglect within six months of
the municipal court ruling.Similarly,
Wis. Stat. § 806.07(1)(a) grants a circuit court discretion to relieve a party
from the effect of a judgment or order due to excusable neglect.Brefka contended that these provisions
authorize discretion in the municipal and circuit courts because the Court of
Appeals had ruled in State v. Schoepp, 204 Wis. 2d 266, 554 N.W.2d 236
(Ct. App. 1996), that a refusal proceeding is a special proceeding to which the
rules of civil procedure are applicable.

The Court of Appeals rejected
Brefka’s arguments and held that municipal and circuit courts lacked competence
to consider Brefka’s untimely request for a refusal hearing and his motion to
extend the time within which to file such a request.Relying on the rule that statutes are to be
construed by discerning the plain meaning of the words used by the legislature,
the Court of Appeals pointed to the fact that Wis. Stat. § 343.305(9)(a)4.
explicitly states that revocation will begin on the 30th day if no request for
a hearing is received with the 10-day period.

Brefka contends that Wis. Stat. §
343.305(9)(a) establishes the 10-day limit to request a refusal hearing.He asserts that the statute is silent as to
whether courts can extend the time limit or allow a reopening of the refusal
issue after a suspension has been imposed.Because the statute is silent on this point, Brefka contends that Schoepp
requires the normal rules of civil procedure to come into play, which allow for
judicial extensions of deadlines.

The village of Elm Grove contends
that Brefka’s assertion that refusal proceedings are routinely reopened is
unsupported by facts of record.It seeks
a decision affirming the Court of Appeals’ interpretation of the relevant
statutes.

WISCONSIN
SUPREME COURT

THURSDAY,
MARCH 14, 2013

9:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which affirmed a Milwaukee County Circuit Court
decision, Judge Carl Ashley, presiding.

This case examines whether a
criminal defendant has a constitutional right to be present when a trial court
questions a sitting juror and dismisses that juror for cause, or whether that
right may be waived by counsel without the trial court conducting a personal
colloquy with the defendant.

Some background: Demone Alexander
was convicted, following a jury trial, of the 2007 shooting death of Kelvin
Griffin.Alexander contends that his constitutional
right to be present during jury selection was violated when the trial court
conducted in-chambers interviews with two jurors in his absence.It is undisputed the discussion happened in
the presence of both counsel, and that Alexander’s counsel waived his
presence.

Near the end of the trial “Juror
10” told the bailiff that she might be acquainted with a woman (later
identified as “Monique”) in the gallery of the courtroom.The trial court explored the matter further
in chambers with both counsel for Alexander and the state present, discussing
the juror’s relationship to a woman in the gallery who had been friends with
the juror’s sister.

The trial court withheld
decision, and moved on to an issue involving a second juror, “Juror 33.”

Again, in chambers, with all
counsel present, though without Alexander, “Juror 33” told the trial court that
he knew a witness who had just finished testifying for the defense, and that he
recognized the witness as soon as he saw him as someone he knew for about three
years.

The
following day, the day for closing arguments and deliberations, a third juror
issue surfaced, again involving “Juror 10”.That morning, “Juror 10” called another juror to say she would not be in
because her boyfriend was in a car accident.This information was given to the trial court.

The court, the state and the
juror discussed the situation at length, and the court ultimately struck “Juror
10” and “Juror 33”.

On appeal, the Court of Appeals
concluded that Alexander’s presence in the trial court’s chambers during the
interview of the two jurors during trial was properly waived by his trial
counsel.

Alexander now asks whether a
defendant has a personal, constitutional right to be present whenever any
substantive step is taken in a case, including the right to be present at all
proceedings when the jury is being selected. In support of this argument the
petitioner cites Wis. Stat. § 971.04(1) (which provides in relevant part that a
“defendant shall be present … [d]uring voir dire of the trial jury.”).

The
Court of Appeals disagreed with the broad definition of voir dire this argument requires, ruling that this constitutional
and statutory mandate is applicable only to the initial selection of the jury,
i.e., prior to the taking of testimony. The Court of Appeals stated: “Once the
jury has been selected and sworn and the trial has begun, a defendant may
voluntarily absent himself from various trial proceedings.”

Alexander
asserts that prior appellate decisions have held that “[a] trial runs from the
commencement of jury selection through the final discharge of the jury and at
any time an action is taken affecting the accused.” Williams v. State, 40 Wis. 2d 154, 160, 161 N.W.2d 218
(1968).

WISCONSIN
SUPREME COURT

THURSDAY,
MARCH 14, 2013

10:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which reversed a Waukesha County Circuit Court
decision, Judges Robert G. Mawdsley and Mark D. Gundrum, presiding.

This case examines whether a
circuit court has “inherent authority” to order the destruction of a
presentence investigation (PSI) report after entry of judgment not related to
charges in the original sentencing proceeding.

Some background: Brandon Melton
pled guilty to second-degree sexual assault of a child under 16 years of age
and to theft of movable property.Additional charges for battery, felony bail jumping, and second-degree
sexual assault of a child were dismissed but read in for sentencing
purposes.The circuit court ordered the
Department of Corrections (DOC) to prepare a PSI report.

After receiving the Nov. 19, 2009
PSI report, Melton moved to strike portions of it that discussed certain
uncharged offenses under a section entitled “Description of Offenses.”At a hearing on the motion held before
sentencing, he argued that the inclusion of the uncharged offenses was
prejudicial and violated DOC rules.

The circuit court concluded the
information about the uncharged offenses would be of little use to the court at
sentencing and would be prejudicial to the defendant after sentencing.The circuit court, citing its inherent
authority, issued a written order on March 31, 2010, directing the DOC to
prepare a second PSI report omitting the objectionable information.The order also directed that the first PSI
report “shall be sealed and destroyed following the expiration of any appellate
time limits.”Neither party objected to
this order.

At the start of the sentencing
proceeding (which was held before a different judge), defense counsel advised
the sentencing court that a new PSI report had been prepared and was to be used
for sentencing purposes.The defendant
was sentenced to four years of initial confinement and eight years of extended
supervision.

Following sentencing and entry of
the judgments, the successor circuit court (a third judge), on its own motion,
scheduled a review hearing after discovering the order that the first PSI
report was to be destroyed after the expiration of the appellate time
limits.The court advised the parties it
had set the matter for a hearing because it did not believe it had the
authority to destroy a PSI report.Defense counsel advised that the defendant was pursuing an appeal so the
matter of destroying the PSI report might be premature.

The circuit court found that
since it was ordering the PSI report not be destroyed, the pendency of the
appeal was irrelevant.The circuit court
modified the prior order, mandating that the first PSI report be sealed rather
than destroyed.The defendant appealed,
and the Court of Appeals reversed.

The Court of Appeals held the
circuit court has the authority to destroy the first PSI report to prevent
confusion as to which PSI report in the file should be used for
sentencing.It pointed to this court’s
decision in State v. Henley, 328 Wis. 2d 544, ¶73, which said that
courts exercise inherent authority “to ensure the efficient and effective
functioning of the court, and to fairly administer justice.”The Court of Appeals said the defendant’s
appeal was still pending and the potential existed for resentencing.

The state says the Court of
Appeals’ decision is not supported by prior “inherent authority” cases, and
that placing a PSI report under seal achieves the same end as destruction
because it prevents public disclosure of the contents of the report.

The state also argues destruction
of the PSI report is contrary to SCR 72.01, which mandates the retention of all
records in felony cases for 50 years after entry of judgment, and that there is
a real risk that courts will use the Court of Appeals’ decision in this case to
justify destroying other court records in other circumstances.

Melton
argues having two PSI reports in a file presents an opportunity for confusion
and injustice and that the state never addresses what purpose would be served
by keeping the “wrong” PSI report in the court file when a valid PSI report
remains intact.

WISCONSIN
SUPREME COURT

THURSDAY,
MARCH 14, 2013

1:30
p.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which reversed a Brown County Circuit Court
decision, Judge Donald R. Zuidmulder, presiding.

This case arises from a dispute
over business territory between two Paul Davis Restoration franchises. The Supreme
Court examines issues related to whether a judgment entered against only an
entity’s trade name is enforceable against the trade name and the underlying
entity.

The parties proceeded to binding
arbitration and Paul Davis S.E. was awarded $101,693. Paul Davis S.E. moved the
circuit court to confirm the award and named “Paul Davis Restoration of
Northeast Wisconsin / Matthew Everett” as defendants. Because Everett was never
made a party to the arbitration action, he objected to being named as a
defendant in the motion to confirm the arbitration award.

Paul Davis S.E. subsequently
moved the Milwaukee County Circuit Court to enter judgment against not only
Everett personally, but also EA Green Bay LLC, which operated the subject
franchise business under the Paul Davis Restoration trade name. The circuit
court did not enter judgment against either Everett or EA Green Bay LLC but,
rather, against the d/b/a designee—”Paul Davis Restoration of Northeast
Wisconsin.” Paul Davis S.E. did not appeal the name in the judgment entry.

Paul Davis S.E. then filed a
garnishment action in Brown County seeking to enforce the judgment. The
garnishee bank account was held by Denmark State Bank under the name “EA Green
Bay LLC d/b/a Paul Davis Restoration & Remodeling of NE WI d/b/a Building
Werks.” Paul Davis N.E. moved to dismiss the action, claiming the underlying
judgment against it was unenforceable and could not form the basis for the garnishment
action.

The circuit court said the
evidence made clear that EA Green Bay LLC and Paul Davis N.E. were the same
entity.Thus, the court ordered the bank
to release account funds to satisfy Paul Davis S.E.’s judgment.Paul Davis N.E. appealed.The Court of Appeals reversed.

On appeal, Paul Davis N.E.
continued to argue that the underlying judgment against it was void as
unenforceable because a d/b/a designee is not a legal entity.The Court of Appeals agreed.

The Court of Appeals said if
judgment had been entered against EA Green Bay LLC, any assets held under its
d/b/a designation could have been garnished to satisfy the judgment, but it
said the converse is not true.It said
since the judgment confirming the arbitration award was entered only against
the d/b/a designee, a legal non-entity, it is unenforceable and the circuit
court erred when it denied Paul Davis N.E.’s motion to dismiss the garnishment
action.

Paul Davis S.E. argues that a
decision by the Supreme Court would help to establish a policy to discourage
entities from hiding assets under various trade names. Paul Davis S.E. reasons
that because the money judgment was entered against Paul Davis N.E. and Paul
Davis N.E. is simply another way to refer to EA Green Bay LLC, the judgment against
Paul Davis N.E. is equivalent to a judgment against EA Green Bay LLC, which
means the garnishment action can proceed against the bank account which bears
EA Green Bay LLC’s name.

Paul Davis N.E. says that Paul Davis S.E. never
requested leave of the court to add EA Green Bay LLC as a defendant, nor did
Paul Davis S.E. ever try to specifically include EA Green Bay LLC as a party to
the arbitration proceedings.Paul Davis
N.E. says that Paul Davis S.E.’s attempt to enforce its judgment against EA Green
Bay LLC violates sound public policy that requires parties be named properly in
pleadings to any lawsuit.